15 years ago a number of family lawyers got together and thought that it may be sensible to mirror our colleagues in the civil litigation world by considering the idea of arbitration in the family law context.
In 2010 the idea gained momentum and led to the launch of the IFLA (Institute of Family Law Arbitration) Scheme for financial cases in April 2012. Since that time 220 financial arbitrators have been trained and over 90 financial arbitrations undertaken.
We are now deemed to be world leaders in family law arbitration! Much of the success can be attributed to the judicial support and encouragement we have seen in a number of cases:
In W v M (TOLATA Proceedings) (Anonymity)  EWHC 1679 (Fam),  1 FLR 1513, Mr Justice Mostyn said: 'where parties are agreed that their case should be afforded total privacy there is a very simple solution: they sign an arbitration agreement. Arbitration has long been available in proceedings such as these. Recently arbitration has become available in financial remedy proceedings by virtue of the much to be welcomed scheme promoted by the Institute of Family Law Arbitrators. In those proceedings privacy can now be guaranteed.'
In T v T (Hemain Injunction)  EWHC 3462 (Fam),  1 FLR 96, Nicholas Francis QC considered the validity of an arbitration clause in a pre-nuptial agreement which the wife argued she was not bound by. The Court held that the arbitration clause was valid as s 7 of the 1996 Arbitration Act allowed for the separability of the arbitration agreement.
In S v S (Financial Remedies: Arbitral Award)  EWHC 7 (Fam),  1 FLR 1257, the President of the Family Division, Sir James Munby provided the strongest judicial support for the use of family arbitration which paved the way for it to take centre stage in resolving breakdowns. He made it clear that in the absence of very compelling countervailing factors, arbitral awards will be capable of being the 'single magnetic factor of determinative importance'. It would only be in the rarest of cases that it would be appropriate for family Judges to do other than to approve the arbitral award. To quote the President, 'with a process as sophisticated as that embodied in the IFLA Scheme it is difficult to contemplate such a case'.
In DB v DLJ  EWHC 324 (Fam), Mostyn J considered the routes of challenge and appeal for family arbitral awards in the context of an application by husband for the wife to show cause why the arbitral award should not be made into a court order. He decided that the arbitral award was a 'thorough, conscientious and clear piece of work. Its quality is a testament to the merit of opting for arbitration'.
Sir Peter Singer has developed standard arbitration orders which have the approval of the President who in November, issued guidance to further advance the efficient interface between judicial and arbitral systems, laying out the ways in which:
agreements to resolve issues would be addressed;
how stays of court proceedings would be managed;
how the post-arbitral court order would be sought;
reflecting on the guidance given to the judiciary in S v S as to the approaches to be taken:
to the agreed order and
the application where one side seeks to resile from the arbitral determination.
Further encouragement outside the court room has been forthcoming from eminent retired members of the Judiciary, including Sir Hugh Bennett: 'in my estimation the advantages so outweigh what are said, very inaccurately, to be disadvantages, that I confidently predict that within the near future family arbitration will complement the court system just as private medicine complements the National Health Service'.
It is against this background that the Children Arbitration Scheme is being launched in July 2016. Already 20 arbitrators have been trained and more will be trained in April with a view to cases being arbitrated as from July. The training for those who are not already arbitrators is a 2-day course run by the Institute of Family Law Arbitration in Bloomsbury Square by Suzanne Kingston, Jonathan Tecks and Janet Bazley QC. As well as the course, candidates are required to draft an arbitral award within one week of completing the course and submit it to IFLA for marking and moderation. Currently accredited financial arbitrators can undertake a conversion course to become a children arbitrator – this lasts one day.
Scope of the Children Scheme
The Children Scheme will cover arbitration in respect of issues such as where the children should live, time spent with each parent, s 8 Orders, internal relocation within England and Wales. It is anticipated in due course that the Scheme may extend to cover external relocation to Hague countries.
This is a very exciting time for arbitration and our prediction for the future is that arbitration will grow even more in popularity as the optimum choice for separating couples in the weeks and months to come.
Benefits of arbitration
In many of the cases highlighted above, the Judge has set out the benefits of arbitration for the parties.
These might be boiled down and expanded:
What you don’t get
The requirement of a MIAM;
All the standard preliminary steps and stages, whether or not they are appropriate to your case;
The hurdle of satisfying a judge that expert evidence is necessary;
Waiting in line till the court slots are available;
Clients having to fit their availability to the court-provided slots;
The risk of going to court and finding your case ‘bumped’ by urgent business so that you only start your one day case at 2pm and have too little time to get through the evidence and issues;
The related problem of sitting around in inconvenient premises (that don’t promote dialogue and settlement) whilst waiting to hear if you will get on;
Having to present a case within the confines of a restrictive court bundle;
Coming on before a Judge who does not really make children issues a major part of their work or who has particular views on the application that is being brought that stands in the way of the fair hearing (great if the judicial tendency helps you, but who wants to rely on that?);
Finding that despite the best efforts of the judge to manage their over-stuffed list, you go 'part heard' and face the wait of months (and a further round of brief fees) before the issues can advance;
The risk of the court refusing to make a determination of the issue that your clients have raised for a decision;
The risk of media attention or a reported judgment;
A significant risk of further delay, cost and uncertainty process whilst appeals are under-way.
What you do get
A creative process that the advisors and clients help design with the arbitrator to best meet the needs of ensuring a fair hearing of the issues;
The possibility of a decision based on papers rather than the formality of a hearing (if that is what better suits the situation);
The option of selecting a decision maker: rather than going to court and having a Judge imposed on them, the parties are able to determine who they would like to hear their dispute. With a range of potential arbitrators available – retired judges, QCs, partners in law firms and junior counsel, parties have a choice and are able to bring in who is best to deal with their particular dispute;
The expert, oral and written evidence that the parties believe is needed to address the issues in the case rather than the more restricted evidence that current pressures on the court-system require be imposed;
The possibility of review hearings and trialling solutions;
Usually a real endeavour to pin down the key issues that need to be addressed: the parties have autonomy in arbitration and are able to work together to determine the best process to deal with their case. There are no 'set tracks' but rather an ability to agree a proposed way forward;
Control and pacing: the parties are able to ask the arbitrator to deal with matters expeditiously if an urgent adjudication is required. Alternatively, if they feel they would like to take their time in resolving their dispute that is also an available option;
Confidentiality – crucially, in a time where openness and transparency are the buzz words in the family law arena, for clients who need confidentiality, this can be assured within the context of arbitration;
Informality – the whole procedure is much less formal and many of the clients who have been through arbitration have spoken about feeling included in the process rather than the court process which can often be alienating and frightening.
And yes, OK, may be you do get arbitrator’s fees – but with costs starting below £2,500 per day for senior practitioners eager to get flying hours under their belts, these costs are usually dwarfed by the savings that can be made from the shorter, more tailored process.
At the end of the process the parties will decide whether the arbitral determination needs to be backed up by an order of the court or whether this model of privatised, expert, autonomous determination has provided the parties with the answer that they needed without further court approval. 'Training for the IFLA Children Scheme: A delegate's view' by James Pirrie and Felicity Shedden will be published later this week.